Fifth Circuit Right-to-Duel Ruling Draws Praise From Second Amendment Scholars

Judge James Ho didn't throw away his shot. Overshadowed by (the rest of) March Madness, late on Friday of last week, a panel of the U.S. Court of Appeals issued a startling decision in Clarke v. Gonzales. Here's the money line from Judge Ho's opinion for the unanimous panel: 

Because the State can point to no well-established tradition of forbidding dueling with pistols at the time of the Founding--indeed, because there was a well established tradition obligating men of honor to accept the challenge when the gauntlet was laid down--the Second Amendment as made applicable by the Fourteenth forbids the otherwise sovereign State of Texas from holding Mr. Clarke in prison for one second longer.

Accordingly, the panel reversed the district judge's ruling dismissing the habeas petition of Archibald Butterworth Clarke III, who sought and obtained relief from his state court conviction for attempted murder. As recited in the Fifth Circuit opinion, James Stupak challenged Clarke to a duel after Clarke refused to apologize for saying that Stupak (who was, at the time, Clarke's boss in a Dallas accounting firm) was "so dumb he couldn’t pour piss out of a boot with a hole in the toe and the directions on the heel"--a comment Clarke made loudly (while apparently drunk) at the company's 2022 Christmas party. Clarke accepted Stupak's challenge, and they met at dawn on what Judge Ho's opinion calls "the field of honor" (which was in fact a closed-off area of a Walmart parking lot).

During the duel, Clarke fired his antique flintlock first and missed, whereupon Stupak fired one shot from his Ruger 1911 into the air ("as a true gentleman" in Judge Ho's description). Off-duty police officer Joyce Fielding heard the shots, rushed to the scene, and promptly arrested both men and their respective seconds. Stupak and the seconds pled guilty to reckless endangerment to avoid prison sentences, but Clarke insisted on going to trial. The trial judge denied his motion to quash on Second Amendment grounds; he was convicted and sentenced to five years imprisonment; the state court appeals failed; SCOTUS denied cert; and the timely habeas petition ensued.

Judge Ho's remarkable opinion begins by asking an obvious question: "Does the Second Amendment protect not merely the right to keep and bear, but actually to use, a firearm?" He gives a non-obvious answer: yes. Here's the key analysis:

Heller, McDonald, and Bruen all make clear that law-abiding citizens have a right to possess firearms "for lawful purposes." Texas argues that attempted murder is not a "lawful purpose," but that is bootstrapping. If the State could restrict firearms or their use simply by defining some use as unlawful and thereby preclude further judicial inquiry, then the legislature could effectively repeal the Second Amendment. Instead, the relevant question is whether dueling is a traditionally lawful purpose--i.e., one that was not systemically proscribed at the Founding. And as the historical record confirms, to ask that question is to answer it. 

Judge Ho's opinion surveyed English, colonial, and early post-Revolutionary sources for over forty pages of the slip opinion, concluding with a lengthy quote from an 1877 opinion of the Virginia Supreme Court. Here is most of that quotation, with internal quotation marks removed:

In the reign of George the Third about one hundred and seventy duels were fought, of which not less than seventy resulted fatally, but in no instance was a conviction ever obtained when the duel was fairly fought according to the terms of the code of honor. The British parliament passed the most stringent laws on the subject in aid of the common law; but they were wholly ineffectual to arrest the practice, or even to moderate its excesses.  . . . Notwithstanding the severity of the criminal law, the juries were determined to acquit, and their verdicts were winked at by the judges, and received with acclamations by a sympathizing public. It is recorded of a trial which occurred in 1792 in England, the learned judge went so far as to tell the jury, that although an acquittal might trench upon the rigid rules of law, yet the verdict would be lovely in the sight of God. Such was the state of public sentiment and administration of criminal law in England. Deriving our customs, laws, literature and fashions from that country, it was natural we should imitate them in a practice which, according to prevalent opinion, encouraged forbearance, generosity of sentiment, and manliness of conduct in society.

Judge Ho's opinion goes on to say:

(1) The Virginia Supreme Court's "frank respect and admiration for manliness may be out of fashion in our woke and gender-neutral age, but it is in truth admirable and, more importantly, part of the original public meaning of the Second Amendment, indeed of the whole Constitution;" 

(2) any limitations on the scope of the Second Amendment must be determined by "laws actually enforced, not merely on the books;"


(3) the Antiterrorism and Effective Death Penalty Act (AEDPA) "does not bar relief because our holding that dueling in conformity with the Code Duello receives shelter from the Constitution takes manly dueling outside the criminal law as per the Teague primary conduct exception. See Montgomery v. Louisiana, 577 U.S. 190 (2016)." A footnote added that "of course, in light of the Supreme Court's opinions (mistakenly) construing the Fourteenth Amendment to bar most forms of gender discrimination, women also have the constitutional right to duel."

Each of those statements is worth extended discussion, but rather than unpack them all myself, I'll simply refer readers to the mini-symposium that the Volokh Conspiracy managed to put together less than 24 hours after the ruling. (Kudos on such alacrity!) There you can find:

(1) Josh Blackman arguing that "Clarke is rightly decided" and also contending (although its relevance is not immediately evident), that "the President is not an Officer of the United States;" 

(2) David Kopel explaining why, in his view, "the Fifth Circuit's Clarke opinion does not go nearly far enough because the Second Amendment properly understood protects a right to duel even outside the rules of the Code Duello and using whatever weapons, including swords, rocks, and bare hands, are available;"

(3) Steven Calabresi arguing "that dueling is essential to the preservation of democracy;"


(4) a guest post by Senator Josh Hawley filled with praise for the framers, Judge Ho, and even Aaron Burr, concluding that "the Fifth Circuit's celebration of manliness is a long-overdue corrective to the emasculation of our constitutional birthright."

As regular readers of this blog would expect, I disagree with nearly all of what appears in Judge Ho's opinion and in the Volokh Conspiracy mini-symposium, but I can't say that Judge Ho and the participants in that mini-symposium don't faithfully apply SCOTUS precedent. Honestly, is anything in Judge Ho's opinion crazier than Justice Alito's concurrence in NYS Rifle & Pistol Ass'n v. Bruen? There Justice Alito invokes his own armchair sociological observation that many New Yorkers "must traverse dark and dangerous streets in order to reach their homes after work or other evening activities" in support of the majority's determination that the right to keep and bear arms in service of a well-regulated militia invalidates gun control laws adopted by elected officials responding to constituents whom Justice Alito and the rest of the SCOTUS conservative super-majority evidently regard as fools.